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Thursday, April 5, 2018

Use of videography of the scene of crime - guidelines = wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering 5 was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL)NO. 2302 OF 2017
SHAFHI MOHAMMAD …Petitioner
Versus
THE STATE OF HIMACHAL PRADESH …Respondent
WITH
SPECIAL LEAVE PETITION (CRIMINAL)NO. 9431 OF 2011
(Ravinder Singh @ Kaku versus The State of Punjab)
AND
SPECIAL LEAVE PETITION (CRIMINAL)NOS.9631-9634 OF 2012
(The State of Punjab versus Ravinder Singh @ Kaku and Anr.)
O R D E R
SLP(Crl.)No.2302 of 2017
1. Use of videography of the scene of crime is the subjectmatter of consideration herein. We may note the proceedings in
the case on earlier hearings. In order dated 25th April, 2017, it
was observed:
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“Mr. A.N.S. Nadkarni, Additional Solicitor General,
has accordingly put in appearance and made his
submissions. He has also submitted a note to the
effect that such videograph will indeed help the
investigation and such concept is being used in
some other advanced countries. The NationalInstitute of Justice which is an agency of U.S.Department of Justice in its report has noted theperceived benefits for using the “Body-WornCameras” and also the precautions needed indoing so. The British Transport Police has alsofound body worn cameras as deterrent againstanti-social behaviour and tool to collectevidence. He also referred to judgment of this
Court in Karnail Singh Vs. State of Haryana,
(2009) 8 SCC 539 wherein reference to use of
technology during search and seizure under
Narcotic Drugs and Psychotropic Substances Act,
1985 has been made. Reference has also been
made to Information Technology Act
(Amendment) 2006, particularly, Section 79A. In
(1976) 2 SCC 17, Ziyauddin Burhanuddin Bukhari
Vs. Brijmohan Ramdass Mehra & Ors., this Court
noted that new techniques and devices are the
order of the day. Audio and video tapetechnology has emerged as a powerful mediumthrough which a first hand information can begathered and can be crucial evidence.
Learned Additional Solicitor General has also
drawn our attention to the Field Officers'
Handbook issued by the Narcotics Control
Bureau, Ministry of Home Affairs, Government of
India, inter-alia, suggesting that logistic support
be provided to the search teams. It further
suggests that all recovery and concealment
methods should be videographed
simultaneously. The said handbook 3 also
suggests that permission should be taken under
Section 52A of the Narcotic Drugs and
Psychotropic Substances Act, 1985 for pretrial
disposal of the contraband. Further, reference
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has been made to the Narcotic Drugs and
Psychotropic Substances (Amendment) Bill, 2016
moved by a private member in the Lok Sabha.
He submits that in his view such Bill will advance
the interests of justice and he will advice the
Government of India to consider and oversee
adoption for these measures in the Country by
investigating agencies.
Mr. A.I. Cheema, learned Amicus points out thatSecond Proviso to Section 54A of the Cr.P.C.provides for videography of identificationprocess in circumstances specified in the saidprovision. He also stated that there should bevideography of confessional statement underSection 164 Cr.P.C. He states that such measurescan also be adopted for recording dyingdeclarations, identification processes and thepost-mortem.
Since, we find that at the ground level these
measures have not been fully adopted, we direct
the Home Secretary, Government of India to
ascertain from different Investigating Agencies
to how far such measures can be adopted and
what further steps be taken to make use of
above technology for effective investigation and
crime prevention.”
2. Thereafter, in the order dated 12th October, 2017
consideration of the matter was as follows:
“Mr. A.N.S. Nadkarni, learned Additional Solicitor
General, has filed a note stating that the matter
was discussed by the Union Home Secretary with
the Chief Secretaries of the States. A decisionwas taken to constitute a Committee of Experts(COE) to facilitate and prepare a report toformulate a road-map for use of videography incrime investigation and to propose a Standard3Operating Procedure (SOP). The Committee has
held its meetings. The response of the States is
in support of use of videography. The Central
Investigation Agencies have also supported the
said concept. However, certain reservations have
been expressed in the implementation such as
funding, securing the data and storage of the
same. It has also been submitted that the
production and admissibility of evidence are also
issues which may need to be addressed.
We had requested Mr. Jayant Bhushan, learned
senior counsel, to assist the court who has also
submitted a note to the effect that videography
will be a beneficial step for effective prosecutionsubject to the issue of admissibility beingresolved to make the use of videographycompatible and useful. He also submitted thatthe direction ought to be issued for use ofvideography in investigation and such use bemade mandatory.
We have also requested Mr. Arun Mohan, learned
senior counsel, present in the Court, to assist the
Court on the subject as amicus. He submitted
that equipments which may be useful for
scientific investigation have been suggested in
certain publications on the subject. A copy each
of the said 3 publications has been furnished to
Mr. Nadkarni so that the same can be considered
by the Committee of Experts. He submitted that
still photography may be more useful as it
enables much higher resolution for forensic
analysis. Digital camera can be placed on a
mount on a tripod which may enable rotation
and tilting. Secured portals may be establishedto which Investigation Officer can e-mailphotographs taken at the crime scene. To giveauthenticity and prevent manipulation, digitalimages can be retained on State’s server aspermanent record. The State server can re-mailthe digital files back to the police station for4further use. Special cameras may be selected bythe BPR&D. Till this is done, smart-phones canalso be used. BPR&D may prepare a guidancemanual for the Investigation Officers for crimescene photography and video recording ofstatements of witnesses. He stated that a further
note on the subject may be submitted by him.”
3. In order dated 30th January, 2018 it was observed:
“(3) We have been taken through certain decisions
which may be referred to. In Ram Singh and Others
v. Col. Ram Singh, 1985 (Supp) SCC 611, a ThreeJudge
Bench considered the said issue. English
Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464,
and R. v. Robson, (1972) 2 ALL ER 699, and American
Law as noted in American Jurisprudence 2d (Vol.29)
page 494, were cited with approval to the effect that
it will be wrong to deny to the law of evidenceadvantages to be gained by new techniques and newdevices, provided the accuracy of the recording canbe proved. Such evidence should always be regardedwith some caution and assessed in the light of all thecircumstances of each case. Electronic evidence washeld to be admissible subject to safeguards adoptedby the Court about the authenticity of the same. Inthe case of tape-recording it was observed that voiceof the speaker must be duly identified, accuracy ofthe statement was required to be proved by themaker of the record, possibility of tampering 5 wasrequired to be ruled out. Reliability of the piece ofevidence is certainly a matter to be determined inthe facts and circumstances of a fact situation.However, threshold admissibility of an electronicevidence cannot be ruled out on any technicality ifthe same was relevant.
(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate,
(2010) 4 SCC 329, the same principle was reiterated.
This Court observed that new techniques and
devices are order of the day. Though such devices
are susceptible to tampering, no exhaustive rule
could be laid down by which the admission of such
evidence may be judged. Standard of proof of its
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authenticity and accuracy has to be more stringent
than other documentary evidence.
(5) In Tomaso Bruno and Anr. v. State of Uttar
Pradesh, (2015) 7 SCC 178, a Three-Judge Bench
observed that advancement of information
technology and scientific temper must pervade the
method of investigation. Electronic evidence was
relevant to establish facts. Scientific and electronic
evidence can be a great help to an investigating
agency. Reference was made to the decisions of this
Court in Mohd. Ajmal Amir Kasab v. State of
Maharashtra, (2012) 9 SCC 1 and State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.”
4. On the issue of interpretation of Section 65B(4) of the
Evidence Act with regard to the admissibility of the electronic
evidence it was observed :
“12. Accordingly, we clarify the legal position on
the subject on the admissibility of the electronic
evidence, especially by a party who is not in
possession of device from which the document is
produced. Such party cannot be required to
produce certificate under Section 65B(4) of the
Evidence Act. The applicability of requirement of
certificate being procedural can be relaxed by
Court wherever interest of justice so justifies.
13. To consider the remaining aspects,
including finalization of the road-map for use of
the videography in the crime scene and the
Standard Operating Procedure (SOP), we adjourn
the matter to 13
th
February, 2018.”
5. We have now taken up the issue for further consideration.
An affidavit dated 21st March, 2018 has been filed by the Director,
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Ministry of Home Affairs (MHA) annexing thereto Report of the
Committee constituted by the MHA about use of videography in
police investigation dated 22nd November, 2017. The Committee
considered various issues including the present infrastructure and
usage, concerns/problems raised by various States for use of
videography during investigations, admissibility of electronic
evidence in absence of a certificate under Section 65B(4) of the
Evidence Act, operational difficulties, lack of training, funding,
forensic facilities. The Committee observed that though crime
scene videography was a “desirable and acceptable best
practice”, the mandatory videography required major issues
being addressed. Videography may be done on “Best Effort”
basis. The timeline should be different for different States and
the Central Investigating Agencies. The Committee suggested
two alternative timelines. The second option i.e. Option-B
suggested by the Committee is as follows:“7.3 Option-B: Centrally Driven Plan of Action:The second approach suggested is forimplementation of the directions in a phasedmanner with milestone based reviewmechanism.7a. Phase-I: Three Months: Concept,Circulation and Preparation.* The concept for videography of therecommended categories of tasks,preparations for pilot project launch ini)Cities of 50 lakhs population ormore; and, ii)at least one district ofevery remaining State/Union Territory;within three months of the orders ofthe Hon’ble Supreme Court. In theselected district(s), at least five policestations may be identified forimplementation of the scheme onbest effort basis as a pilot project* Capacity Building by organizingtraining programme for personnel inthe police station on the VideographyTechniques for them to be qualified asthe Trained Police Videographer bythe end of three months. Eachselected Police Station should identifypersonnel for Trained PoliceVideographer qualification, at the rateof two (2) Trained Police Videographerfor every 25 heinous/grave crimecases reported in that police stationin a year.* Selected Districts beenabled/provided finances to procurethe equipment required for use by theTrained Police Videographer.* A representative of the FSL trained inhandling digital evidences should beidentified by each of the states tomentor and hand hold the PilotProject implementation districtTrained Police Videographers. Where8FSL has no resources to offer, theSP/DCP of the concerned districtshould be authorized to hire a privatetechnical person proficient in digitalimaging and back-up technologies tohandhold/mentor the Trained PoliceVideographers.* Preparation of Trainer PoliceVideographer Training Modules andTraining of Trainers courses byBPR&D/CDTS/State Police Academies.b. Phase-II: Six Months: Pilot ProjectImplementation* After the three months of Concept,Circulation and Preparation stage, thepilot project should be launched in theselected police stations of theshortlisted Districts of the States.* The concerned DistrictSuperintendent of Police / DeputyCommissioner of Police, shalldesignate an officer of the rank ofDeputy Superintendent ofPolice/Assistant Commissioner ofPolice, to supervise theimplementation of the Pilot Projectand to chronicle the Pilotimplementation. Any implementationissues shall immediately be flaggedand brought to the notice of the SP /DCP concerned. The officerdesignated will be responsible for theuninterrupted implementation of thePilot.* Launch of Trained Police VideographerTraining Programmes/ Training of9Trainer Course by BPR&D/CDTS/ StatePolice Academies.c. Phase-III: Three Months: PilotImplementation Review* The Phase –II Pilot implementationshould be reviewed by anindependent consultant and,suggestions for seamlessimplementation on a wider scaleshould be prepared.* The report of the independentconsultant to be considered by MHAand select group of officers regardingPilot implementation and reviewreport preparation.* The review and findings by MHA to beplaced before the Hon’ble SupremeCourt for incorporating necessarychanges as required regarding theVideography during Investigation andobtain necessary instructions.* During this phase, each state shouldprepare detailed plans for the launchof the next phase of Videography inInvestigations project extending it toi) all cities with a population of 10lakhs and more; b) in all districts witha population of 20 lakhs and more,during Phase-IV.* A representative of the FSL trained inhandling digital evidences should beidentified for each of the new unit tomentor and hand hold the districtTrained Police Videographers, whereroll out is proposed in Phase-IV.Where FSL has no resources to offer,10the SP/DCP of the concerned districtshould be authorized to hire a privatetechnical person proficient in digitalimaging and back-up technologies tohandhold/mentor the Trained PoliceVideographers.* Each state to submit plans forstrengthening the Forensic SciencesLaboratories for handling increasedCyber Forensics/Digital Media analysisunits. MHA to consider therequirements for this purpose underthe MPF scheme.* During Phase-III, the Pilotimplementation districts/cities willcontinue with the Videography inInvestigations project and extendthem to all their Police Stations.d. Phase-IV: One Year: Coverageextension from Pilot Implementation* Implementation of the Videography inInvestigations project to Cities of 10+lakhs population/Districts of 20+lakhs population identified duringPhase-III.* During this phase, each state shouldprepare detailed plans for the launchof the Videography in Investigationsproject in all remaining districts/cities,which were not covered during PilotPhase (Phase-II) and Phase-III.* A representative of the FSL trained inhandling digital evidences should beidentified for each of the remainingunits to mentor and hand hold the11district Trained Police Videographers,where roll out is proposed in Phase-V.Where FSL has no resources to offer,the SP/DCP of the concerned districtshould be authorized to hire a privatetechnical person proficient in digitalimaging and back-up technologies tohandhold/mentor the Trained PoliceVideographers.* MHA to work on extending thefinancial support for implementationof the project for remaining cities anddistricts during Phase-V.e. Phase-V: One Year: Coverageextension to remaining Cities and Districts* Implementation of the Videography inInvestigations project in all remainingdistricts and cities.* Review of Phase-IV implementationlearning based on independentconsultant’s report by MHA andsubmission of status report to theSupreme Court formodifications/suggestions forimprovement of the Videography inInvestigations project.”
6. Apart from above, the Committee suggested that a group of
experts may be set up at the level of Government of India
comprising:
(i) One head of Central Investigation agencies (CBI,
NIA, NCB) as Chairperson;
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(ii) One head of State Police;
(iii) One head of CFSL or Senior Forensic Scientist with
expertise in the area;
(iv) A Senior Legal Professional (LA of CBI or NIA or
comparable from Ministry of Law); and
(v) A senior representative from MHA as members.
7. The group should have the freedom to co-opt members and
private experts. The group could periodically issue
guidelines/advisories. It is further suggested that each State
Police and the Central Investigating Agency may create a Steering
Committee under HOPF/Head of CPO within the organization to
spearhead this drive. Each State Police/Central Investigating
Agency may also designate a senior officer in the rank of IG/ADG
as Nodal Officer for spearheading the massive expansion of
photography and videography in investigation. Such an officer
should be given authority/responsibility to review the progress at
periodic intervals and take/propose necessary measures.
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8. After considering the report of the Committee, the MHA
prepared an action plan on the use of videography in the police
investigation stipulating capacity building in terms of training,
equipment, forensic facilities, a scheme for requisite funds,
preparation of Standard Operating Procedure (SOP). For this
purpose, the timeline suggested is as follows:
“All Central Agencies will be asked to
prepare and submit Annual Action Plan on
“photography and videography in
Investigation for 2018 within three months.
The Ministry will scrutinize the plans and
prepare a consolidated requirement and
send a formal proposal/scheme to the
Ministry of Finance for concurrence and
obtaining budget within two months from
the finalization/approval of the
consolidated action plan, insofar as Central
Agencies are concerned.
Efforts will be made to obtain the budget
from Ministry of Finance within the financial
year 2018-19.
Similar action will have to be taken by
States/UTs with respect to their forces.”
9. We are in agreement with the Report of the Committee ofExperts that videography of crime scene during investigation is ofimmense value in improving administration of criminal justice. A
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Constitution Bench of this Court in Karnail Singh versus State
of Haryana (2009) 8 SCC 539 noted that technology is an
important part in the system of police administration1
. It has also
been noted in the decisions quoted in the earlier part of this order
that new techniques and devices have evidentiary advantages,
subject to the safeguards to be adopted. Such techniques and
devices are the order of the day. Technology is a great tool in
investigation2
. By the videography, crucial evidence can becaptured and presented in a credible manner.
10. Thus, we are of the considered view that notwithstanding thefact that as of now investigating agencies in India are not fullyequipped and prepared for the use of videography, the time isripe that steps are taken to introduce videography ininvestigation, particularly for crime scene as desirable andacceptable best practice as suggested by the Committee of theMHA to strengthen the Rule of Law. We approve the Centrally
Driven Plan of Action prepared by the Committee and the timeline
1 Para 34 – (2009) 8 SCC 539
2 Ram Singh and Ors. vs. Col. Ram Singh 1985(Supp) SCC 611, R. vs. Maqsud Ali
(1965) 2 All ER 464, R vs. Robson (1972) 2 All ER 699, Tukaram S. Dighole vs.
Manikrao Shivaji Kokate (2010) 4 SCC 329, Tomaso Bruno and anr. vs. State of
Uttar Pradesh (2015) 7 SCC 178, Mohd. Ajmal Amir Kasab vs. State of Maharashtra
(2012) 9 SCC 1 and State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.
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as mentioned above. Let the consequential steps for
implementation thereof be taken at the earliest.
11. We direct that with a view to implement the Plan of Action
prepared by the Committee, a Central Oversight Body (COB) be
set up by the MHA forthwith. The COB may issue directions from
time to time. Suggestions of the Committee in its report may
also be kept in mind. The COB will be responsible for furtherplanning and implementation of use of videography. We direct
the Central Government to give full support to the COB and place
necessary funds at its disposal. We also direct that the COB may
issue appropriate directions so as to ensure that use of
videography becomes a reality in a phased manner and in first
phase of implementation by 15th July, 2018 crime scene
videography must be introduced at least at some places as per
viability and priority determined by the COB.
12. We place on record the suggestion of the learned amicus
that funding for this project may be initially by the Centre to the
extent possible and a central server may be set up. These
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suggestions may be considered by the COB. We also note that
law and order is a State subject.
13. We may also refer to a connected issue already dealt with by
this Court in D.K. Basu versus State of West Bengal and
ors. (2015) 8 SCC 744. This Court directed that with a view tocheck human rights abuse CCTV cameras be installed in all policestations as well as in prisons. There is need for a further
direction that in every State an oversight mechanism be created
whereby an independent committee can study the CCTV camera
footages and periodically publish report of its observations. Let
the COB issue appropriate instructions in this regard at the
earliest. The COB may also compile information as to compliance
of such instructions in the next three months and give a report to
this Court.
14. Compliance of above directions may be ensured by the
Secretary, Ministry of Home Affairs in the Central Government as
well as Home Secretaries of all the State Governments.
15. An affidavit of progress achieved may be filed by the
Oversight Body on or before 31st July, 2018.
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Put up the matter for further consideration on 1st August,
2018.
…………………………………..J.
[Adarsh Kumar Goel]
…………………………………..J.
[Rohinton Fali Nariman]
New Delhi;
3
rd April, 2018.
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